Summary: Mr Y complains about the Council’s decision to allow an increase in the fees paid for his mother’s residential care home placement through a Deferred Payment Agreement. He also complains about the Council’s handling of his complaint. We find the care home and the Council notified Mr Y of the upcoming increase. We also find there is limited injustice because Mr Y had the opportunity to review his options in the event he was not happy with the new fees. However, there is some fault in the Council’s handling of the complaint which it has apologised for.

The complaint

1. Mr Y complains that since November 2022 the Council has paid an additional £60 per week for his mother’s residential care which is currently funded by a Deferred Payment Agreement. Mr Y says the Council agreed to the increase without first notifying and consulting the Lasting Power of Attorneys (LPA).
2. When he complained about the matter, Mr Y says the Council delayed in responding and failed to address all the points he raised.
3. Mr Y says his mother, Mrs Z, will experience financial loss because of the Council’s actions. He has also experienced avoidable distress and time and trouble in pursuing this matter on behalf of Mrs Z.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. During my investigation I discussed the complaint with Mr Y and considered the information he provided.
8. I made enquiries of the Council and considered its response.
9. Mr Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making this final decision.

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What I found

What should happen

Charging for permanent residential care

10. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
11. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital

Deferred payments

13. Deferred Payment Agreements (DPA) can be made when a person has savings or investments less than the £23,250 financial limit, but has assets tied up in property. The Council pays the care home fees on the resident’s behalf and the debt is secured against the resident’s property to ensure repayment. The debt is repaid from the resident’s estate after their death or upon the sale of the property.
14. The Council’s ‘Deferred Payment Fact Sheet’ says: “The amount of the top-up will be reviewed at least annually. The Care Home may also seek a change to the price at any time. If the change in price remains sustainable then it may be agreed. If not, then you will be notified to see if an alternative placement is required. If the amount of equity in the property reduces and the top-up is no longer sustainable then an alternative placement may be needed”.

Contracts and fees

15. The Care Quality Commission (CQC) is the independent regulator of health and social care services in England. The CQC’s Fundamental Standards are the standards below which care should never fall. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 sets out the obligations to ensure that care providers give timely and accurate information about the cost of their care and treatment to people who use services.
16. To meet this regulation, providers must notify people of any changes to their terms and conditions, including increases in fees and give them sufficient time to consider whether they wish to continue with the service.
17. The Competition and Markets Authority (CMA) produced guidance in November 2018 called ‘Care Homes: consumer rights for residents and their families’. This provides an overview of a service user’s right under consumer law. Where there are changes to fees, the guidance says the service user should usually receive at least 28 days’ notice of them. If unhappy, the resident should be able to leave the home without penalty before the change takes effect.

Background summary of key events relating to the complaint

18. Mrs Z has lived in a residential care home since 2021. The placement has been funded via a Deferred Payment Agreement (DPA) since August 2022.
19. Mr Y has joint LPA for Mrs Z along with his sister, whom I will refer to as Mrs W.
20. On 15 August 2022 Mrs W emailed Mrs Z’s care home. The email said, “Thank you so much for your chat today… I have informed [Mr Y] about the rise of £50 per week in mum’s care home fee as of October 2022. We will contact North Somerset about the increased fee with regards to their deferred loan to help pay for mum’s care”. The email went on to say, “Thank you once again to you and your team for looking after our mum. This is so greatly appreciated”.
21. The care home emailed the Council on 25 August to confirm the increase: “Further to my conversation with the family, I am writing to confirm that from 4 October 2022 the weekly care for [Mrs Z] will increase from £995 per week to £1050”.
22. Mr Y spoke with the Council on 27 October to discuss the fees. He said he had not received a letter to confirm the proposed increase with effect from October. In the absence of a formal letter, Mr Y said the family could not agree to the proposal.
23. The Council contacted the home to request a letter to be sent to the Council so that it can be retained as a formal record and forwarded to Mr Y.
24. The care home wrote to the Council on 9 November confirming that Mrs Z’s fees increased with effect from 1 November 2022 to £1,100 per week. This was more than the £50 increase originally discussed with Mrs W.
25. Mr Y called the Council on 16 November. He said the home had still not written to him about the increase. Mr Y also queried why the proposed increase was now £110 per week. Mr Y also called the Council’s finance team who said they would call him back after they had time to read an email and check the system.
26. Later that day, the Council contacted the care home to confirm that it would only agree to the £1,050 fees and not the additional amount proposed on 9 November.
27. Mr Y called the Council again on 2 December. He said the home had still not written to him. The officer said the correct person was not available and that she would pass the message on for a callback. Mr Y called the finance team again. He says the officer told him the Council should have told the care home that the increase could not be agreed.
28. The Council confirmed with Mr Y that it accepted the £60 increase, but only with effect from 1 November.
29. Mr Y had several telephone conversations with the Council throughout December and January about the increase and the absence of a formal letter to notify him.
30. The Council called Mr Y on 26 January 2023. The officer said the Council had still not received a letter from the care home.
31. On 24 February Mr Y visited the care home and the manager provided two hard copy letters to confirm the new fees and the reasons for the increase.
32. Mr Y complained to the Council on 24 February.
33. The Council issued a response at stage one of the complaints procedure on 17 March. The Council did not uphold the complaint but said it would review internal processes for managing cases like Mr Y’s.
34. The Council responded to Mr Y’s complaint at the second stage of the complaints process on 4 July. In summary it said:
• It is evident the home requested two increases. But the home only discussed one increase with the family (Mrs W) on 15 August.
• The Council applied the first increase with effect from 1 November 2022, rather than the 4 October 2022 date initially specified by the home.
35. Dissatisfied with the outcome, Mr Y approached the LGSCO.

Was there fault in the Council’s actions causing injustice to Mr Y & Mrs Z?

Increasing Mrs Z’s residential care fees

36. The records show the care home first notified the Council of the £60 increase on 25 August 2022 via email. The email gave 37 days’ notice. This exceeds the CMA guidance which suggests a minimum notice period of 28 days.
37. The records show that Mr Y first became aware of a proposed £50 increase on or around 15 August when Mrs W relayed the details to him. We know this because Mrs W confirmed in an email that she had spoken with Mr Y about the increase.
38. Mr Y says there is no evidence to show the care home discussed a £60 increase with the family in August. Mrs W’s email refers to a £50 increase only. Mr Y only became aware of the additional £10 per week when he spoke to the Council on 27 October 2022.
39. The Council’s DPA fact sheet says that an increase can take place at any time and that it is for the Council to decide whether the increase is sustainable. In this case, the Council considers the increase is sustainable because the value of Mrs Z’s property will cover the cost of her care – at the current rate - for an additional 35 years.
40. In my view, although it is not specified in the terms of the signed DPA, it would have been good practice for the Council to write to Mr Y with 28 days’ notice once it had decided the proposed increase of £60 per week was sustainable. This is because the Council is the commissioner for Mrs Z’s placement. The purpose of the letter would be to notify Mr Y, rather than to seek his permission.
41. In this case, we know that Mr Y and Mrs W were aware of a proposed increase from mid-August. The email from Mrs W expresses the family’s satisfaction with Mrs Z’s placement. Upon learning of the increase, the family had six weeks to decide whether to continue with the placement.
42. Our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the Council. Although Mr Y has pointed out that Mrs W’s email referred to a £50 increase, rather than £60, I consider there is limited injustice. This is because the care provider gave sufficient notice to the Council of the actual increase to £1,050 per week. As explained above, the Council is the commissioner of the care, and it is for the Council to decide whether the fees remain “sustainable”.
43. Therefore, even in the absence of any letter from the Council, it is my view that the outcome would have likely been the same. The Council told Mr Y by telephone on 27 October that the proposed increase was £60 per week. Although this did not amount to 28 days’ notice, after considering the available information, we can say it is more likely than not that Mr Y would have decided to keep Mrs Z in the placement. This is irrespective of whether the Council had written to Mr Y 28 days before the increase. I therefore find there is limited injustice caused by the alleged fault.
44. The Council has also confirmed that it is open to discussing alternative placements with Mr Y and Mrs W if they are dissatisfied with the cost of Mrs Z’s current placement.

Complaint handling

45. There is fault in the Council’s handling of Mr Y’s complaint. This is because it did not respond to the stage one complaint within 10 working days as per its corporate complaints policy and it did not respond to the stage two complaint within 17 working days of Mr Y’s request.
46. Furthermore, Mr Y says the Council did not respond to all the points he raised. In response to our enquiries the Council acknowledged this “oversight” and apologised. The Council has now provided responses to the two outstanding points which will be sent to Mr Y with this decision statement.
47. In my view this is an appropriate remedy for the time and trouble caused by the fault in the complaint handling.

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Final decision

48. I have completed my investigation. We find there is no significant injustice arising from the fault Mr Y alleges. However, there is fault in the Council’s complaint handling, which it has apologised for. This is an appropriate remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman